Influential Criticisms of Civil Litigation

This chapter outlines the most politically influential critique of the civil litigation system, which holds that undeserving plaintiffs frequently prevail—recovering unwarranted damages with harmful social consequences. The chapter explains the tenets of that critique and identifies the reform proposals that accompany it. It furthermore shows how this critique has proven influential, in the sense that important parts of its reform agenda have been adopted by policymakers, including courts, at both the federal and state level.

Features of a Well-Working Civil Litigation System

This chapter provides an analytical and normative framework for evaluating the civil litigation system as well as for understanding existing critiques of the system. It argues that civil justice requires, first, that courts are accessible to parties with valid legal claims and defenses and, second, that courts are capable of distinguishing between strong and weak claims and defenses, which the chapter defines as reliability. This chapter also explains the central importance of litigation costs, and notes that on the one hand litigation costs can impede access to the courts, while on the other hand some costs are crucial to the operation of the civil litigation system—in that distinguishing between strong and weak claims requires certain expenditures.

Reducing Undesirable Cases

This chapter marks the first of four reform chapters, taking up the issue of undesirable cases, which are those that should never be brought in the first place. The chapter accordingly proposes a number of filters to prevent or discourage undesirable cases from entering the civil litigation system altogether, again in the interest of lowering litigation costs. These reforms include tightening rules and procedures aiming at frivolous cases and increasing the potential use of sanctions, as well as mechanisms to provide advice to self-represented (pro se) individuals.

Real Threats to Civil Justice

Having rejected the most influential critique of civil litigation in the previous chapter, this chapter argues that a lack of access to the courts constitutes a bigger threat to civil justice. Given the high litigation costs emphasized by many reformers, there are reasons to worry that bona fide would-be litigants are too often priced out of the litigation system. This concern has special force with respect to potential litigants whose claims may be legally strong but whose expected legal remedies are modest. For them, the costs of litigation may often outweigh its anticipated benefits. Rather than too much litigation, then, the observation that litigation is costly leads more naturally to the worry that there is too little of it.

The Civil Litigation System

This chapter provides a primer to the subject matter of the book. It introduces the reader to the basic mechanics of the civil litigation system: the structure of the courts, the boundaries of litigation, the different types of civil claims and defenses, and parties to civil cases (distinguishing plaintiffs and defendants), the fundamentals of a civil action, and the overall volume of civil litigation across different types of cases, including contract, tort, and others. In addition to offering an overview of civil litigation, this chapter also emphasizes the need for a shared understanding of what the system does and what it is supposed to do—laying the groundwork for the chapters that follow.

Providing Cheaper Paths to Court

This chapter focuses on reforms that seek to make litigation more accessible by lowering its "price." After explaining the promises and limits of familiar alternatives to traditional litigation, such as alternative dispute resolution and health courts, the chapter proposes the establishment of new forms of civil proceeding. In particular, it proposes a new "medium claims court" that has some, but fewer, of the features of traditional litigation. A medium claims court should be designed for cases in which the stakes are too great for small claims court but too small for ordinary litigation. In this same vein, this chapter also proposes adoption of expedited jury trials and experimentation with small claims juries. More generally, it argues that parties should be incentivized, and judges should affirmatively be encouraged, to adopt tailored litigation processes according to the needs and stakes of all civil cases, in order to ensure that civil procedure better aligns litigation costs to the size of a given case.

The Unsubstantiated Case for Litigation Reform

This chapter assesses the influential critique outlined in the previous chapter. It argues that this dominant critique of the civil litigation system has been merely pled and not proven. It shows that the critique trades on anecdotal evidence that is not accurate and not convincing. The analysis here furthermore shows that available data—including data on win-loss ratios, damages across different types of civil cases, and juries—cast serious doubt on its basic premises. The most influential critique of the civil litigation therefore does not bear close scrutiny, and thus its policy reform agenda is not well grounded. This chapter concludes that if the civil litigation system is flawed, it is not so for the reasons the influential critics have articulated.

The Benefits of Civil Litigation

This chapter argues that while litigation is important to the parties to a case, who often seek to recover damages if successful, it is also important to society at large. In particular, civil litigation brings social benefits because litigation is the means through which legal commitments are enforced; litigation gives effect to the rule of law itself. This chapter further argues that the desirable litigation levels are achieved when parties with bona fide legal claims, and only such parties, initiate litigation.

Introduction

The introduction presents the rationale and structure of the book. This book focuses litigation and litigation reform proposals, as opposed to liability reform (i.e., reform of the underlying substantive legal rules). In particular, it focuses on lowering litigation costs, in part in order to promote greater access to the courts, and thereby to advance the book’s articulated vision of civil justice. The book is aimed especially at policymakers and thought leaders on the subject.

Conclusion

The conclusion of the book wraps up by reiterating overarching themes. It observes again that the influential critique of the civil litigation system, while not compelling, rightly emphasizes the costs of litigation. It explains that because the litigation systems sees at once too few cases and too much litigation, it should be rendered both more accommodating to those who lack access and less costly for those who have it. That combination would advance the aspirations of civil justice. The conclusion also notes that improving the civil litigation system, in the ways such as those proposed in this book, is most likely to result from decentralized reform through localized experimentation.